R v GJ

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 113 of 2007

THE QUEEN
	v
GJ

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JUDGES:	NETTLE, WEINBERG JJA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2008
DATE OF JUDGMENT:	12 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 222	1^st Revision 13 November 2008

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Criminal law – Conviction – Rape – Whether judge erred in directions as to the elements of rape – Evidence – Consciousness of guilt – Lie – Whether judge erred in failing to give a Zoneff direction – Application refused – Dhanhoa v The Queen [2003] 217 CLR referred to.

Criminal law – Sentencing – Manifest excessiveness – Appellant sentenced to 12 years’ imprisonment with a non-parole period of nine years – Whether judge gave sufficient weight to youth and prospects of rehabilitation of appellant and of concurrency and totality principles – Whether judge erred in making sex offender registration order pursuant to s 11 of Sex Offenders Registration Act2004 – Appeal allowed – Appellant re-sentenced to a term of 10 years’ imprisonment with a non-parole period of seven years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Ms F L Dalziel	Clarebrough Pica

NETTLE JA
WEINBERG JA
HARGRAVE AJA:

On 5 February 2007 the applicant was arraigned before the County Court at Melbourne on a presentment preferring 13 counts of rape (counts 1, 4, 5, 8, 9, 10, 12, 13, 21, 22, 23, 24 and 25), seven counts of intentionally causing injury (counts 2, 3, 11, 14, 16, 18 and 20), two counts of false imprisonment (counts 6 and 15), one count of make threat to kill (count 7), one count of administering a substance to another (count 17) and one count of indecent assault (count 19). He pleaded guilty to count 15 but not guilty to all other counts.

After several days of trial, on 8 February 2005 the jury returned a verdict of not guilty by direction on four counts of rape (counts 4, 5, 13 and 22) and the one count of administering a substance to another (count 17). The trial then continued to its conclusion and, after deliberating for a day, on 13 February 2007 the jury returned a verdict of guilty on seven of the counts of rape (counts 9, 10, 12, 21, 23, 24 and 25); four counts of intentionally causing injury (counts 11, 14, 16, 18); one count of indecent assault (count 19) and one count of false imprisonment to which the applicant had pleaded guilty (count 15), but acquitted the applicant of the remaining two counts of rape (counts 1 and 8), three counts of intentionally causing injury (counts 2 and 20), one count of false imprisonment (count 6) and one count of make threat to kill (count 7).

Following a plea in mitigation of penalty, on 26 April 2007 the judge sentenced the applicant as follows:
·     On count 9 (rape by vaginal penetration with deodorant can), to four years’ imprisonment;
·     On count 10 (rape by oral penetration with penis) to four years’ imprisonment;
·     On count 11 (intentionally causing injury by punching the complainant across the face), to two years’ imprisonment;
·     On count 12 (rape by vaginal penetration of the complainant’s anus with a tampon), to four years’ imprisonment;
·     On count 14 (intentionally causing injury by punching the complainant in the head and kicking her numerous times), to two years’ imprisonment;
·     On count 15 (false imprisonment by tying up the complainant for the night), to 20 month’s imprisonment;
·     On count 16 (intentionally causing injury by butting out a cigarette on the complainant’s thigh), to two years’ imprisonment;
·     On count 18 (intentionally causing injury by punching the complainant in the head), to two years’ imprisonment;
·     On count 19 (indecent assault by urinating on the complainant and requiring her to lick the urine), to two and a half years’ imprisonment;
·     On count 21 (rape by introducing a torch into the complainant’s anus), to four years’ imprisonment;
·     On count 23 (rape by introducing his fingers into the complainant’s anus), to four years’ imprisonment;
·     On count 24 (rape by introducing his fist into complainant’s anus), to four years’ imprisonment); and
·     On count 25 (rape by introducing a sewer plunger handle into the complainant’s anus), to four years’ imprisonment.
The judge treated the sentence of four years’ imprisonment imposed on count 9 as the base sentence and cumulated one year of the sentence imposed on count 10, three months of the sentence imposed on count 11, one year of the sentence imposed on count 12, three months of the sentence imposed on count 14, six months of the sentence imposed on count 15, three months of the sentence imposed on count 16, three months of the sentence imposed on count 18, six months of the sentence imposed on count 19, one year of the sentence imposed on count 21, one year of the sentence imposed on count 23, one year of the sentence imposed on count 24 and one year of the sentence imposed on count 25 on each other and on the sentence imposed on count 9, thus making for a total effective sentence of 12 years’ imprisonment, and fixed a non-parole period of nine years. Her Honour declared pursuant to Schedule 1 of the Sentencing Act 1991 that the applicant had been sentenced as a serious sexual offender in relation to counts 12, 19, 21, 23, 24 and 25, and ordered pursuant to s 11 of the Sex Offenders Registration Act 2004 that the applicant is a registrable offender and must comply with the reporting obligations under that Act, pursuant to s 34 for the remainder of his life.

The applicant now seeks leave to appeal against both conviction and sentence.

The Crown case

The applicant was born on 14 November 1985 and, at the time of the alleged offending between June and September 2005, he was 19 years of age. The victim of the offences was a young woman of 20. They met for the first time in or about April 2005 and shortly afterwards began to live together in a de facto relationship in a cabin at the Blue Gum Caravan Park in Campbellfield. There were three main occasions on which the alleged offending occurred.

(i) First incident (1 June 2005 – 31 August 2005)

In or about June 2005 the applicant and the victim travelled together to Crown Casino for an evening out. On their way home, the complainant made use of a public toilet near Crown Casino and it was alleged that the applicant had followed her into the toilet and there had sexual intercourse with her without her consent (count 1 - rape). After that, they continued on their homeward journey together, and it was alleged that during the trip home the applicant had physically assaulted the victim (count 2 – intentionally causing injury). Then, upon arriving back at the caravan park, the applicant was alleged to have punched the victim (count 3 – intentionally causing injury) and threatened to kill her while holding a knife to her throat (count 7 – make threat to kill).

(ii) Second incident (10 September 2005 to 14 September 2005)

It was further alleged that during the weekend of 10 and 11 September 2005, one of the applicant’s friends visited the applicant and the complainant at their cabin and there was then some discussion between the applicant and the other man about the features of their mobile telephones. The applicant’s telephone was equipped for taking still-shot photographs only, whereas his friend had a later model telephone which was capable of taking live video footage. At some point during the afternoon, it was said, the applicant had borrowed his friend’s telephone and the applicant and the complainant had then retreated to the bedroom in the cabin. Once there, the applicant had instructed the complainant to take off her clothes and get on the bed, which she did, and had then compelled her to insert a can of deodorant into her vagina and masturbate herself (count 9 - rape) as he filmed her with his friend’s telephone. Then he was alleged to have grabbed her by the head and penetrated her mouth with his penis (count 10 - rape) while still filming. After that, he allowed her to get dressed again and then transferred the video footage from his friend’s telephone onto his own telephone, where it was later found by police.

(iii) Third incident (16 September 2005 – 18 September 2005)

On Friday 16 September 2005, when the applicant and the complainant were in their cabin at the caravan park, the applicant admitted to the complainant that he had been unfaithful to her on two occasions and asked her whether she intended to leave him. She answered that she would not leave him because she was afraid of what his reaction might be. The applicant replied that he did not believe her and then punched her across the face (count 11 - intentionally causing injury). Later the complainant went to the caravan park office to collect a food parcel and told a woman who worked in the office that the applicant had been hitting her and that she was scared. She then returned to the cabin, where the applicant hit her again. She told him to stop hitting her and he did. But later that evening he penetrated her anus with a tampon without her consent (count 12 - rape).

On the morning of Saturday 17 September 2005, the applicant asked the complainant for oral sex and she refused. It was alleged that he then grabbed her head and penetrated her mouth with his penis (count 13 – rape) and punched her in the head and kicked her numerous times (count 14 – intentionally causing injury). That evening, he began punching her again and butted out his cigarette on her thigh (count 16 intentionally causing injury) and then tied her up with a belt (count 15 – false imprisonment) so that she had to sleep the night in that condition.

On Sunday 18 September 2005, the applicant untied the complainant. She had a headache from being punched in the head and it was alleged that the applicant had made her swallow between 10 and 15 Panamax tablets (count 17 – administering a substance to another). She went then to have a shower and he followed her into the shower room and punched her in the head (count 18 – intentionally causing injury) and then over the next 10 to 12 hours he punched and kicked her and also cut her leg with a knife (count 20 – intentionally causing injury). It was further alleged that he urinated on her and made her lick the urine (count 19 – indecent assault) and penetrated her repeatedly - by introducing a torch into her anus (count 21 – rape); introducing his penis into her vagina (count 22 – rape); introducing his fingers into her anus (count 23 – rape); introducing his fist into her anus (count 24 – rape); and introducing a sewer plunger handle into her anus (count 25 – rape).

After that, when the applicant fell asleep, the complainant escaped to a neighbouring caravan where the occupier called a taxi. The complainant took the taxi to her aunt’s home where she made a partial complaint, and then her aunt drove her to the police station where she made a formal complaint.

The defence case was that although it was admitted that most of the alleged acts had occurred, they were consensual.

Appeal against conviction – ground 1

Under ground 1 of the appeal against conviction, the applicant contends that the judge erred by failing to give an appropriate direction to the jury as to the use which they could make of a lie which the applicant told the police as to the whereabouts of his mobile telephone.

To put the point in context, it is necessary to refer to some of the evidence. Relevantly, it was that when the police first attended at the Blue Gum caravan park to investigate the victim’s complaint, the informant asked the applicant as to the whereabouts of his mobile telephone. The applicant’s initial response was that he did not know where it was but, a short time later, he told police that it was in his car. Thereafter, when he was formally interviewed, he confirmed those details as follows:

45: We originally asked you about your phone, what did you tell me?
I told you that I didn’t have it.

46: Mm’m.
I didn’t know where it was. It must have been in the house or left somewhere – I don’t know.

47: Okay. Now, we then placed you – after, I think it was about - I’m just looking at my notes – 5 minutes - - - ?
Yeah.

48: No, sorry, it was 10 minutes that we – I - , in the police car?
Yeah.
49: And I – it then came to my attention that you accessed the gate to the caravan park and - - - ?
…. …. …. keys.

50: Driven a – driven a car into the premises?
Yes.

51: Do you recall that?
Yes.

52: Remember the conversation I then had with you in relation to that?
Asked me about my phone.

53: Yeah.
And then I thought I’d do the right thing, and I handed it in to you guys, which I told you that it was in my VK Commodore - - -

54: Mm’m.
Which was parked on my property when I took you guys to it, and you guys recovered the phone.
55:Okay. So can you explain to me how far from your cabin that your red VK Commodore was parked?
About 10 metres.

The telephone had on it a screen saver photograph of the complainant’s anus with semen on it and also had stored in it a number of photographs of the complainant, or more accurately parts of her body, showing the applicant committing the acts or the results of committing the acts which were alleged to constitute the offences the subject of counts 9, 10, 12, 21, 23 and 24. The applicant admitted that he had committed the acts which were depicted in the photographs, and had taken the photographs, but he said that the acts were all consensual.

The photographs were presented at trial and it was apparent that each of them had a marking on the reverse side, for example, ‘17-09-05.JPG’. The stamp on the reverse was said to be the name of the photograph as it was stored in the telephone. Photographs 3 to 15 each had as the name ‘11-09-05.JPG’. Photographs 1 and 2 were stamped ‘17-09-05.JPG’. Photographs 16, 17 and 18 had a phrase instead of a date. Photographs 3 to 15 related to the charges as follows:
Count 21     –    photos 3–7
Count 24     –    photos 9–11
Count 12     –    photo 12–15
The complainant’s evidence in chief was that the acts the subject of counts 9 and 10 occurred during the period 10 to 14 September 2005 when the applicant’s friend was present in the other room of the cabin and that the acts the subject of counts 21 to 25 occurred a week later during the weekend of violence which culminated in the complainant leaving and seeking the assistance of her aunt.

In his record of interview made on Monday 19 September 2005, the applicant made admissions which appeared to be consistent with that evidence. First, as to the weekend 10 to 11 September 2005 he gave these answers:

328:Over the weekend, have you inserted any objects, such as a torch, a[n] aerosol can, or a plunger, in any part of her body – over the weekend?
Yeah, but it was a couple of days ago.

329: Yeah.
I put a torch in her, I put her a – a - - -

329: Do you remember what day that was?
No, I don’t. I put a can in her.

331: Mm’m.
And the can was recorded.

332: The can was what?
It was recorded, a video recording.

333: Yeah.
And with that, there was consent there.

334: Mm’m.
One of my mates was over with a chick. And my phone’s got blue tooth. I’ve got a camera on it, but I can’t video record.

335: Mm’m.
They were in the lounge room, I was in the bedroom. I asked me mate if I could use his phone for the video recording. [The complainant] was asking too. Mind you, this was just the other day - the date’s on the phone.

336: Mm’m.
And we went off into the bedroom. There’s a 2 minute clip of her. I transferred it across to my phone. And then from there, it transferred across …

Then as to the events of 16 to 18 September 2005, the applicant gave these answers:

319: Alright. Have you had sex with her over the weekend?
Yes, I have.

320: When did you have sex with her last?
Probably Friday morning, Saturday morning - what’s today.

321: Today’s Monday [19 September 2005].
Probably - probably would have been yesterday morning. I cop it every fuckin’ morning and during the day.

322: Mm’m. What type of sex are we talking about?
Anal, oral.

323: Yeah.
And - - -
324:And is that by you inserting your penis into her anus, into her vagina or in her mouth?
Yeah. We’ve done some experimental shit, yeah.
…
391:Now, over the weekend [of 16 to 19 September 2005], back – I’m talking now, Friday - - - ?
Oh.

392: Saturday or Sunday - - - ?
Sunday, yes.

393: Right, being the 3 days in particular - - - ?
Yes.

394: Did you have vaginal - penile sex with her?
Mm’m.

395: Did you – say – you’re nodding your head?
Yeah, yes.

396: Yes. Did you have vaginal – anal sex with her?
Yes.

397: Did you have vaginal – vaginal – penile - mou -, oral sex - - -?
Yes.
398:With her? Where you inserted your penis into her mouth? Did you insert any objects into her body?
Yes.
399: Yeah. Do you remember what days that happened? Could have been Friday, could have been Saturday. Have a look on the phone, the dates are there.

Despite those admissions, however, during the complainant’s cross-examination, defence counsel put to her that the photographs relating to counts 21 to 24 were dated 11 September 2005 and, on that basis, that that she may have been inaccurate in her recollection of the date on which the events shown in those photographs occurred:

The photos that have been shown to you at Folio 3 – if they could be shown, Mr Tipstaff – you say, or you’ve given evidence that the photos in Folio 3, and I’ll start with No. 3? - - - Yes.
You say that they were taken after [the friend] had left, and around the 17^th or 19 September? - - - I told you I’m not sure on dates.
But you’re certain it was when [the friend] had gone? - - - Afterwards, yes.
What you’re saying is that this is just – these were taken just before you went to the police and made statements? - - - Yes.
What I want to suggest to you is that the photos No. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, those photographs from three to 15 were all taken in fact on 11 September at the same time that that video was taken? - - - No.
When you look at Photograph 3, you will see that the same bra is being used or worn as what’s contained in that video, isn’t it? - - - Yes. But I still used that bra till yesterday.
So you wore it every day? - - - Pretty much, yes.
When you were asked by the police about those photographs, and you were asked questions about it earlier, you said that the date was wrong? - - -Yes.
Because the date on the computer was indicating that they’d been taken on 11 September? - - - On the computer?
Yes. When you were shown the photographs by police officers, it had a date of 11 September 05? - - - They were from his phone.
They had a date of 11 September of 05? - - - Possibly.
You don’t remember that? - - - I don’t remember dates.
You answered the question earlier that the date was wrong? - - - Yes, I – I remember the date being wrong because I remember saying the dates were wrong.
But if you don’t know dates, how do you know the date was wrong? - - - Because I remember incidents. I remember how it happened and what it did to me, and how he did it to me. I don’t remember dates and times and things like that. I don’t need to remember things like that – to me, because what happened is enough for me to remember. And you don’t remember dates and times when you think - if (indistinct) sexually harass you or sexually do anything to you, you don’t remember dates and times.

That led to the prosecutor attempting in his final address to defuse the effect of that cross-examination as follows:

[After referring to the applicant’s answers to Questions 305 and 319 in the record of interview.] She’s the one who’s supposed to have transferred the dates. But there he is saying sexual activity has been going on on the Friday, the Saturday and the Sunday. Bear that in mind when [defence counsel] addresses you, if he addresses you in that way.

And then after referring to other answers in the record of interview, the prosecutor said this to the jury:
The dates are there. It brings me to one of what I expect to be [defence counsel’s] big points. The dates on the phone. They don’t match, and you’ve got Exhibit D I believe it, Folio 3. On the back of it …And you … see that the first couple have got the 17^th, that’s smoking a bong and then others have got the 11^th, the objects being inserted, he says he did in the days Friday/ Saturday, the three days before he’s being interviewed [on 19 September 2005].
But also go to the last few photographs. This one for instance. Photo No. 16, and look at the back. “Gotcha” [sic]. The next one, “Ha ha”. What that demonstrates, ladies and gentlemen, is the information [can be manipulated] in the phone. It can be changed because that’s not a date. Someone’s put that in there and you might think it was Mr GJ, put in “Gotcha” and “Ha ha” and whatever else is on the last one. … Also bear in mind that Mr GJ lied to [the informant] about not knowing where the mobile phone was when the police showed up at his cabin caravan. He admits he lied. It’s in the record of interview. Why is he lying about the phone? He says he’s lying about the phone because it’s got photos of her on it and he’s conscious of that when the police show up, when he knows that she’s gone earlier that morning, after he’s tied her up – that’s common ground – and he’s been belting her and you might think Mr GJ put two and two together and came up with she’s going to the police.
Just bear that all in mind if any sort of reliance is put in the submission to you by [defence counsel] about the dates on these phones and whether that should create reasonable doubt in your mind as to when these events happened, and if they happened the way that [the complainant] has told you they happened and when they happened.[1]

[1]Emphasis added.

Returning then to Ground 1, counsel for the applicant submitted in substance that the prosecutor’s rhetorical question of ‘why is he lying about the phone’ invited the jury to speculate as to why the applicant had lied and that one possible outcome of their speculation was a conclusion that the applicant lied out of a sense of guilt that the photographs stored on the telephone showed non-consensual sexual acts, as opposed to the consensual sexual acts which he claimed that they were. In those circumstances, counsel submitted, it was incumbent on the judge to direct the jury in the manner suggested by the majority in Zoneff v The Queen,[2] and her Honour failed to do.
[2](2000) 200 CLR 234, 245.

We do not accept that submission. As counsel fairly and properly conceded, the lie about the telephone was incapable of constituting evidence of consciousness of guilt. And equally, as counsel conceded, neither the judge nor the prosecutor, nor defence counsel, ever conceived of it having that effect, still less suggested to the jury that it could. The only risk was that, because of the prosecutor’s invitation to speculate about the applicant’s reason to lie, the jury might have concluded that it amounted to an admission that the acts shown in the photographs were not consensual. But as defence counsel pointed out to the jury in the course of his final address, and would have been obvious to the jury in the circumstances of this case, there were a number of reasons why the applicant’s first response as to the whereabouts of his telephone may have been false, none of which had anything to do with a consciousness of guilt. As defence counsel put it to the jury:

So, OK, initially he lied. There’s a lot of people out there who when first confronted by the police may not say everything is the truth. Who knows? Think about it. You’ve got a young man who knows that he’s assaulted his girlfriend badly. You’ve got Folio 2 there, you would’ve seen that or if not exactly like that, certainly enough of it. You can hear it in his voice in the record of interview when he’s asked what he did. He certainly would’ve been fearful of the consequences, as he should be and I certainly don’t resile from that in any anything I’m saying …

Given the fleeting duration of the lie; that it was the applicant himself who disclosed to police that it had been a lie; that there were a number of rational explanations other than guilt for the applicant having told the lie; that so much was pointed out to the jury in defence counsel’s final address; and that it was never suggested that the lie may have amounted to an admission of guilt, we consider that the possibility of the jury reasoning that the lie was an admission of guilt was remote, and we are confirmed in that view by the fact that experienced defence counsel did not consider that it was necessary or desirable to request the judge to give the jury a Zoneff direction.[3]
[3]Cf R v Kumar (2006) 165 A Crim R 48, [43] (Maxwell, P); R v Brdarovski (2006) 166 A Crim R 366, [13].

It follows in our view that, even if the jury may have reasoned that the applicant was guilty because he lied to police about the whereabouts of his telephone, the risk is insufficient to warrant appellate intervention. As McHugh and Gummow JJ put it in Dhanhoa v The Queen:

it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he lied to the police. To succeed in the appeal, [the applicant] must establish that it is a reasonable possibility that the failure to direct the jury ‘may have affected the verdict. We do not think that he has done so.[4]

[4][2003] 217 CLR 1, 18 [60].

In the result, we reject Ground 1.

Ground 2

Under cover of Ground 2, counsel for the applicant argued that the judge’s directions to the jury on the elements of the offence of rape were deficient in that:

a) the directions given as to the applicant’s awareness of the complainant’s consent were improper;

b) the judge failed to relate the evidence to the law, and

c) failed to put fairly the evidence in respect to the defence case.

To put that argument in context, it is necessary to recall that the offences were alleged to have occurred in the course of three separate episodes. The first, between 1 June 2005 and 31 August 2005, encompassed the events alleged to have occurred in the public toilet near Crown Casino and the assaults alleged to have been committed later that night. The complainant’s evidence about those events was that the applicant had that night raped her, physically assaulted her, threatened her with a knife, and tied her up against her will, but that relations later normalised, she went to a Sexyland shop with the applicant and was with him when he bought bondage restraints from that shop, which they later used together, and that she also allowed him take photographs of her naked. As has been seen, the jury acquitted the applicant of each of the counts the subject of the first episode (counts 1 to 8).

The second episode related to counts 9 and 10, which were alleged to have occurred between 10 and 14 September 2005, when the applicant’s friend was present in the other room of the cabin. The complainant’s evidence was that the applicant borrowed his friend’s telephone and used it to film her as he forced her to masturbate herself with the use of the deodorant can. She deposed that the applicant had grabbed her hair and threatened to hit her if she did not comply with his directions and that she had complied because she was frightened of him. The applicant’s friend gave evidence that the complainant and the applicant had together asked to use his mobile telephone, that they went into the other room and stayed there for about two hours and that afterwards the complainant was ‘normal’. The defence case was that the acts seen on the video were consensual.

The third episode, covered by counts 11 to 25, consisted of the acts alleged to have occurred over the weekend of 16 to 18 September 2005. According to the Crown case, it commenced with the applicant punching the complainant in the face causing the black eye shown in photos 2 to 5 in Photobook 2. The complainant’s brother and the manager of the Blue Gum Caravan Park gave evidence of having seen the effects of that blow on 16 September 2005. The complainant’s evidence was that each of the rapes alleged in counts 12, 21, 23, 24 and 25 occurred after that punch to her face over the weekend during which the applicant tied her up, hit her repeatedly, cut her with a knife and burnt her with a cigarette. The defence case was that the acts the subject of counts 21 to 24 occurred on 11 September 2005 and were consensual and that the acts the subject of count 25 did not occur at all.

Ground 2(a)

When directing the jury on the elements of the offence of rape, the judge said this about what her Honour described as the fourth element of the offence:

The defence response was that [the complainant] was consenting to the sexual activity alleged in each of those counts. If the prosecution cannot exclude this possibility beyond reasonable doubt, then this fourth element of rape will not be met. It is for you to determine whether the prosecution has proved that the accused had the level of awareness necessary for this element to be satisfied.

Under cover of Ground 2(a), counsel for the applicant submitted that the judge thereby erroneously combined the element of actual consent with the applicant’s awareness of the complainant’s lack of consent and in effect thereby invited the jury to make their decision as to whether the complainant consented in fact the determinant of whether the applicant was proved not to have believed that she was consenting.

We accept that submission up to a point. Evidently, the judge did conflate the issue of consent with the issue of the applicant’s knowledge of lack of consent in the passage of her directions just cited. We do not accept, however, that her Honour’s conflation of the two issues in that one passage of the directions could have misled the jury; for immediately after that section of her directions, the judge identified the evidence relevant to each count, including the evidence relevant to proof of lack of consent, and the defence position in relation to each count, as follows:

The fourth element; this relates to the accused GJ’ state of mind. [Element] 3 was [the complainant’s] state of mind; [Element] 4 is Mr GJ’ state of mind. The prosecution must prove beyond reasonable doubt that at the time of the sexual penetration, GJ was either aware that the complainant was not consenting, or aware that the complainant – and ‘complainant’ means the [name of complainant] in this case; I trust you are aware of that by now – the complainant, [name of complainant], might not be consenting, but decided to sexually penetrate her whether or not she was consenting. As I told you, consent means free agreement. So the prosecution must prove that at the time of the alleged penetration, GJ was aware that [the complainant] was not freely agreeing to be sexually penetrated, or might not have been freely agreeing, but he decided to sexually penetrate her regardless.
… This fourth element will be satisfied if the prosecution can prove beyond reasonable doubt that GJ was aware the [complainant] was, first, (a) submitting to the penetration because of force or the fear of force to herself, or that GJ was aware that [the complainant] might be submitting for this reason, but decided to sexually penetrated her regardless of that, or if he was aware [the complainant] was submitting to the penetration because of the fear of harm of any type to herself, or that GJ was aware [the complainant] might be submitting for this reason, but decided to sexually penetrate her regardless of that possibility, or if he was aware that [the complainant] was submitting to the penetration because she was unlawfully detained, or that GJ was aware [the complainant] might be submitting for the reason being because she was unlawfully detained, but decided to sexually penetrate her regardless of that. In this case, the prosecution allege that GJ was aware [the complainant] was not consenting or might not have been consenting.
The defence response was that [the complainant] was consenting … It is for you to determine whether the prosecution has proved that the accused had the level of awareness necessary for this element to be satisfied.
So to summarise: Before you can find GJ guilty of rape, and I mean any of the counts of rape … the prosecution must prove to you beyond reasonable doubt firstly, that GJ – back onto the handout – that GJ sexually penetrated [the complainant] in the way alleged; secondly, that GJ intended to sexually penetrate [the complainant], and thirdly, that [the complainant] did not consent to the sexual penetration, and fourthly, that at the time of the sexual penetration, GJ was either aware that [the complainant] was not consenting, or aware that [the complainant] might not be consenting, but decided to sexually penetrate her whether or not she was consenting. And if you find any of those elements have not been proved beyond reasonable doubt, then you must find GJ not guilty of that rape count you are considering.[5]

[5]Emphasis added.

In the face of those clear and comprehensive directions, which her Honour thereafter explicated by reference to the evidence, we do not consider there to be a realistic possibility of the jury being left in any doubt as to what they had to find in order to be satisfied on the fourth element of the offence.

Ground 2(b)

The nub of the applicant’s complaint under Ground 2(b) is that, although the judge listed the three circumstances in which a person is taken not freely to consent, because of force or fear of force, or fear of harm or because she is unlawfully detained,[6] her Honour ought also to have related the specific directions to the different circumstances of the second and third episodes. In particular, it was submitted that her Honour ought to have made mention of the differing levels of violence which were said to attend each of those episodes and that there was no suggestion of false imprisonment in the case of second episode. Further, it is said, after the jury asked a question as to whether the dates on which the offence were alleged to have occurred were critical, it was incumbent on the judge to remind the jury that the way in which the Crown case had been put was that the offences the subject of counts 21 to 25 were alleged to have occurred as parts of the third episode, and to have reminded the jury of the difference between the circumstances of the second and third episodes.
[6]Crimes Act 1958, s 36.

In our view, that complaint is devoid of merit. As has already been noted, the judge took the jury to the evidence relating to each count individually, including the date on which the offence the subject of each count was alleged to have occurred, and to the defence case in relation to each count individually, and as part of that her Honour specifically identified each count in relation to which the defence contended that the acts the subject of the count occurred on a different date to that alleged by the complainant. We consider that her Honour thereby plainly satisfied the requirement for a trial judge to relate the issues to the evidence in a fashion which assists the jury sufficiently to understand the issues and the evidence upon which they are to decide them.[7]
[7]Alford v Magee (1952) 85 CLR 437, 466; R v AJS (2005) 12 VR 563, 577 [56]; R v Thompson [2008] VSCA 144 [136] (Neave JA).

Ground 2(c)

Ground 2(c) was abandoned.

Ground 3

Under Ground 3, the applicant complained that, when responding to the jury question as to whether the alleged date of an offence was critical to proof of the offence, the judge impermissibly expanded the way in which the Crown case had been put or alternatively that her Honour erred in failing to point out to the jury at that point the differing levels of violence and otherwise the differences between the circumstances of the second and third incidents.

In order to deal with this point, it is necessary to say something of the way in which the judge informed counsel of the question and sought their assistance as to the manner in which it should be answered. As the judge told counsel before she attempted to answer the jury question, it was as follows:

I’ve been handed by my Tipstaff some questions. I will read them out, and also have them attached to the file: “(1) … (2) … (3). Is the date of the charge an element of the actual charge, i.e. does a date discrepancy impact” - and I’m reading it exactly – “the actual charge? If so, what impact?”

Her Honour then explained to counsel the way in which she proposed to answer the question and obtained their agreement to answering it in that fashion:
HER HONOUR: So if I was to say the following: “The date is not an element of the offence. The Crown do not have to prove the date beyond reasonable doubt.” All right, in answer to that third proposition: “The date is not an element of the offence. The Crown do not have to prove the date beyond reasonable doubt. It is one of the factors you consider going to her, being [the complainant’s] credibility, accuracy and truthfulness, that is whether you accept her evidence as to what she said happened or occurred. It’s been put on behalf of Mr GJ regarding most of the rape counts that consent is the only issue”. Anything counsel would like me to add, vary, delete amend, alter?
DEFENCE COUNSEL: Perhaps just for the sake of complete clarity, your Honour could say that it’s only count 25, the plunger, which is where the above doesn’t apply and the defence position is that that just didn’t happen as I recall.

Thereafter the judge gave the jury the answer she had suggested, in exactly the terms she had suggested, with this addition:

It is only in count 25 which I’ll call the plunger incident or allegation where the defence position is, it didn’t happen.

Needless to say, there was no exception taken.

Despite that sequence of events, however, and the absence of any exception, counsel for the applicant now contends that the Crown so conducted its case at trial as to ‘nail its colours to the mast’ that counts 21 to 25 occurred during the course of the third incident (which is to say between 16 and 18 September 2005); and thus that the judge by directing the jury that the dates of the offences were not critical, unfairly expanded the Crown case beyond the manner in which it had been put.[8] Relying upon observations of Kirby J in W v The Queen,[9] counsel submitted that it followed from the way in which the Crown case had been conducted up to the point of the jury’s question that it was incumbent on the judge to direct the jury that, if they were not satisfied beyond reasonable doubt that the offences the subject of counts 21 to 25 took place during the third incident, they were bound to acquit the applicant of those counts.
[8]Cf R v Torney (1983) 8 A Crim R 437, 438; R v Nguyen [2006] VSCA 293, [20]–[31]; R v SAB [2008] VSCA 150 [8].
[9][2007] HCA 58; (2007) 241 ALR 199, 211 [60]–[67], in diss.

We do not accept that submission. The general rule is that, subject to particular circumstances, the date of an offence is not treated as a material fact which the prosecution must prove beyond reasonable doubt.[10] We see nothing in the particular circumstances of this case which necessitated any departure from the general rule. We allow that it might have been different if the Crown had ‘nailed its colours to the mast’ that counts 21 to 25 occurred during the third incident. In those circumstances, it might have been unfair and unacceptable for the Crown to seek to change the way in which it put its case. But as it appears to us from defence counsel’s final address and his response to the judge’s inquiry as to how her Honour should answer the jury question, the defence did not perceive the range of dates pleaded in the presentment to be of the essence.[11] Indeed, as defence counsel made plain to the jury in the course of his own final address, and again in his response to

the judge’s inquiry as to how she should answer the jury’s question, the only issue, other than in the case of count 25, was whether the acts were consensual.
[10]R v Dossi (1919) 13 Cr App Rep 158, 159–160; WGC v The Queen (2007) 233 CLR 66, 80 [43]; Cf Hackwill v Kay [1960] VR 632, 634.
[11]Cf R v VHP NSW CCA Full Court, 60733/1996, 7 July 1997, unreported; W v R (2007) 241 ALR 199, 221 [67] (Kirby J, in diss).

We do not overlook that the complainant was cross-examined about the dates of counts 21 to 25, and that it was put to her on the basis of those dates and the fact that she did not appear to have a black eye in any of those photographs, that the acts shown in those photographs occurred before she suffered a black eye at the hands of the applicant on 16 September 2005. The point of that part of the cross-examination appears to have been that the applicant’s friend was close by during the course of the second incident and saw the complainant shortly afterwards and did not observe anything to suggest that whatever had occurred in the bedroom was not consensual.

But in the end, it seems to us that defence counsel was prepared to rest the defence on the basis that, because the complainant was shown to be unreliable about the dates on which the acts occurred, the jury could not rely upon her as to whether the acts were not consensual. It was, therefore, a defence which was limited to an attack on her credit and, in those circumstances, if the Crown had sought to amend the presentment to allege that counts 21 to 25 had occurred during the period 10 September 2005 to 18 September 2005, there would have been no reason in principle why the amendment should not have been allowed. Furthermore, in view of defence counsel’s response to the judge’s inquiry, there is no reason to suppose that there would have been any objection to such an amendment. To the contrary, it appears that it would have suited the defence case because, according to the defence, the likelihood of the acts having been consensual during the second incident was considerably higher than them having been consensual during the third incident.

We also reject the contention that it was incumbent on the judge to reiterate the differing circumstances and levels of violence which were said to attend the second and third incidents. In effect, her Honour had only just completed her exposition of the evidence and the way in which it bore upon each of the counts, and there was no suggestion by defence counsel that anything further was required.

Ground 4

Ground 4 was abandoned.

Ground 5

Under Ground 5, counsel for the applicant argued that the verdict on the rape counts and particularly on count 12 (anal penetration with a tampon) was unsafe, because the only evidence of lack of consent was that which the complainant gave in the course of re-examination that it was not consensual.

We do not think that contention to be persuasive. No doubt the evidence of lack of consent should have been adduced in evidence in chief and, given that there was no cross-examination on the point, it was objectionable for the prosecutor to adduce evidence on the point in re-examination. But defence counsel did not object or seek leave to further cross-examine – and thus may be taken to have waived the objection – and the evidence having been so adduced, it was open to the jury to accept it. Given that the applicant admitted that he had penetrated the complainant in the fashion alleged, and thus that the only issue was one of consent, we do not think that it is at all surprising that the jury were prepared to accept the complainant’s evidence that it was non-consensual.

The same is true of the other counts of rape of which the applicant was convicted. Bearing in mind the nature of the acts shown in the photographs stored on the applicant’s telephone, and that, except in the case of count 25, the only issue was consent, it seems to us that the Crown case was in most respects a strong one. So, as defence counsel evidently understood, the case came down to a question of the complainant’s credit. There is nothing which we can see in the transcript of her evidence, and nothing was identified, which suggests that the jury were wrong in their perception of her veracity.

During the trial, defence counsel sought to make something of the fact that the applicant’s friend was present in the next room when the acts constituting the second incident occurred, and submitted that it was highly unlikely that the friend would not have noticed something amiss if the acts had been non-consensual. But that was explained by the complainant’s evidence. She had done what she was told to do by the applicant because she feared that he would hurt her if she did not.

Defence counsel also suggested that the fact that one sees no sign of a black eye in any of the photographs of the acts the subject of counts 21 to 24 throws such doubt on the complainant’s evidence as to when those acts occurred as to make her testimony suspect. But in his admissions to police in the passages of his record of interview earlier set out, the applicant in fact conceded that the acts the subject of counts 21 to 25 occurred in the couple of days preceding his arrest (which is to say over the weekend of 17 to 18 September 2005 as the complainant alleged).

Accordingly, we reject Ground 5.

Ground 6

Ground 6 was a contention based on Kotzmann[12] that, even if the individual grounds of complaint were not sufficient in themselves to demonstrate a miscarriage of justice, the defects the subject of complaint in aggregate had that effect. It follows from our rejection of the individual grounds of appeal that we reject that contention.
[12]R v Kotzmann [1999] 2 VR 123, 157 [114].

Conclusion and orders

For the reasons given, we would refuse the application for leave to appeal against conviction.

Sentence

The applicant contends that both the total effective sentence of 12 years’ imprisonment, and the non-parole period of nine years, are manifestly excessive. He also contends that the sentencing judge erred in making a sex offender registration order pursuant to s 11 of the Sex Offenders Registration Act 2004.

At first blush, the complaint regarding the length of the total effective sentence and the non-parole period seems fraught with difficulty. The applicant stood to be sentenced for seven counts of rape, four counts of intentionally causing injury, one count of indecent assault, and one count of false imprisonment. The maximum penalty for rape is 25 years, and for intentionally causing injury, indecent assault, and false imprisonment 10 years.

It is unnecessary to repeat the details of these offences. They are set out in our reasons for refusing leave to appeal against conviction.

The sentencing judge said that it was difficult to find words to describe the applicant’s behaviour. That is an apt statement. The explanation that the applicant proffered to the police for his conduct was that he had been depressed and that he had become paranoid about his girlfriend cheating on him. That, in conjunction with his extensive use of cannabis and other drugs, had led to his having, in his own words, ‘lost it’.

Her Honour described the applicant’s conduct towards his victim as cruel and sadistic. She said that his behaviour was gross and repulsive. He had subjected his girlfriend to a number of humiliating and degrading assaults. He had shown a complete lack of feeling for her and a total disregard for her well-being.

The applicant pleaded not guilty, save in relation to the count of false imprisonment. He showed no remorse in relation to the counts of rape, and only limited remorse in relation to the acts of violence that he perpetrated. The victim impact statement was, as expected, a moving document, demonstrating clearly the effect that these offences had had upon her.

It was not suggested by counsel for the applicant that the individual sentences imposed were excessive. Nor could it be. A terms of four years’ imprisonment for any rape as callous as these can only be described as lenient.

How then does the applicant put his case? He points to several factors which, he submits, make good his overall point that 12 years, with a non-parole period of nine years, was simply too much.

The applicant was 19 years old when he committed these offences. He was 21 when he came to be sentenced. It was submitted that a sentence which required him to spend at least the next nine years in prison was ‘crushing’ for a young man of this age.

Next, it was submitted that the applicant had expressed remorse for his violent offending, taking issue only with the Crown’s contention that he had intentionally, rather than recklessly, inflicted harm. The applicant pleaded guilty to the count of false imprisonment.

The third point made on his behalf was that he came from a disadvantaged background, with a largely dysfunctional family history. He ran away from home at about the age of 13, and thereafter became addicted to various drugs. These had had a profound impact upon him, leading to serious depression, paranoia, and outbursts of impulsive and even irrational behaviour. In addition, he was of below-average intelligence, with an IQ in the low 80s.

Although the applicant had some prior convictions, these were basically for offences involving dishonesty. They were generally drug related. There was no history of sexual offending.

All of these matters were taken into account by the sentencing judge, who gave careful reasons for imposing the sentence that she did. There is nothing to indicate that they were given insufficient weight.

The real point advanced in support of the applicant was that in sentencing him for multiple offences, her Honour failed to give proper weight to the principle of totality.

In considering that submission, it is necessary to bear in mind that although the applicant was convicted of some 13 separate offences, they all occurred within a week or so of each other. More accurately, counts 9 and 10, both rapes, occurred within moments of each other at some stage during the weekend of 10 and 11 September 2005. The remaining offences were committed over the following weekend between 16 and 18 September 2005.

Sentencing for multiple offences is always likely to present difficulties. The basic principle is that where a person is charged with a series of offences, a court should ordinarily impose an appropriate sentence on each.[13] That principle was endorsed by this Court in Director of Public Prosecutions v Grabovac.[14]

… [I]n order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a “crushing” sentence.

[13]Mill v The Queen (1988) 166 CLR 59, 63; R v Lomax [1998] 1 VR 551, 562-3; and RH McL v The Queen (2000) 203 CLR 452, 457.

[14][1998] 1 VR 664, 680 (Ormiston JA).

The difficulties associated with sentencing for multiple offences are well illustrated by R v Coukoulis.[15] There, the offender pleaded guilty to one count of defalcation by a solicitor and 47 counts of theft. He was sentenced to a total effective sentence of nine years with a non-parole period of six years. The first count alleged a deficiency of some $6.8 million in his trust account. Counts 2 to 48 alleged a large number of thefts, more than the number of counts, totalling some $8.1 million stolen over a period of two and a half years. On count 1, the offender was sentenced to four years’ imprisonment. On counts 2 to 48, the individual sentences varied from one to five years. Notably, count 6 concerning theft of some $75,000 attracted a five-year term while count 14, which concerned theft of just over $520,000, attracted a two-year term. The sentencing judge made no orders for cumulation with respect to counts 2 to 48, leaving a total sentence for those counts at five years. However, his Honour directed total cumulation on count 2, for which the offender had been sentenced to five years, resulting in a total effective head sentence of nine years.
[15](2003) 7 VR 45.

On appeal, it was held that the cumulation order between counts 1 and 2 to 48 was inappropriate. Some cumulation within the 47 counts of theft was called for and, depending on the circumstances, cumulation of something between a quarter to half of the sentence for defalcation might ordinarily have been appropriate. However, it would be rare indeed that 100 per cent of such a term be cumulated.

The victory was pyrrhic. The sentences on some individual counts were adjusted, and new orders were made as to concurrency and cumulation. The net result, however, remained the same. Ormiston JA, with whom Charles JA and Cummins AJA agreed, explained as follows.

One might enquire why, if this court were to conclude that the cumulation of the whole four years on count 1 was manifestly excessive, the overall total effective sentence of nine years should be maintained. If only one or two years should be added to the five years imposed for the theft counts, why, it may be asked, should the total effective sentence still be nine years rather than the apparently resulting six or seven years? In my opinion the answer can be easily deduced from the method adopted by his Honour to produce that total effective sentence. In effect, the judge was seeking to apply Grabovac in a case where there were so many terms of imprisonment that it would have been in breach of the principle of totality to cumulate appropriately many of those terms. The solution preferred in Grabovac is to impose the correct sentence for each count and then to work out, having regard to the principle of totality, the proper total effective sentence, making such limited orders for cumulation as are fair in order to reach an overall sentence which is not in breach of that principle of totality or of any other relevant sentencing principle. There will necessarily be some ad hoc reasoning and arbitrary conclusions if that process is to be carried out effectively when numerous counts have to be dealt with in the course of sentencing. It should be the final result, the total effective sentence, and any minimum term, with which the sentencing judge should be primarily concerned. I am not suggesting (nor should this court countenance) that quite inappropriate orders for cumulation be made, but some cumulations will seem possibly inadequate and others a little too much in what is an otherwise acceptable exercise of discretion as to the period appropriately to be cumulated and what is to be left concurrent.[16]

[16]Ibid [32].

The point made in all these cases is that where a person is sentenced for more than one offence, the total effective sentence must give effect to what is generally described as the totality principle. That principle requires the sentencing judge to:

… stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose.[17]

[17]R v Creed (1985) 37 SASR 566, 568 (King CJ).

In Postiglione v The Queen,[18] Kirby J said that a sentence:

[M]ay offend the totality principle because, looking at the prisoner’s criminality as a whole, the outcome is, in its totality, not ‘just and appropriate’. The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be ‘crushing’ and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform.[19]

[18](1997) 189 CLR 295.

[19]Ibid, 341.

It is clearly established that a degree of cumulation may be necessary in a case of multiple sexual offences.[20] It is also clearly established that total concurrency need not be ordered merely because a series of offences have been committed during what might be described as a single course of conduct.[21] Whether or not cumulation is ordered in relation to such offences will depend on whether each additional incident may be seen as having added to the total criminality of the offender’s conduct.[22]
[20]R v O’Rourke [1997] 1 VR 246, 253.
[21]R v Jennings, Court of Appeal, unreported, 2 June 1998 (Tadgell JA).
[22]Ibid.

It was not suggested by counsel for the applicant before this Court that the sentencing judge had erred in directing partial cumulation in respect of each count notwithstanding the fact that a number of them occurred at the same time. Rather, it was submitted that there had been excessive cumulation, leading to a total effective sentence that was crushing and a non-parole period that failed to give proper weight to the applicant’s prospects of rehabilitation.

It goes without saying that the primary consideration in sentencing an offender for crimes of this nature is the need to ensure that the public is adequately protected. That may entail giving primacy to deterrence, both general and specific. It is also essential to ensure that an offender who commits offences of this character is adequately punished.

However, it cannot be forgotten that the public is also protected when an offender is rehabilitated. In the present case, the applicant was able to call in aid, as an important consideration, the fact that he was only 19 years of age when he committed these offences.

In R v Mills,[23] Batt JA observed that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. As previously indicated, the applicant is not a first offender, but his prior convictions are of a totally different order to the offences committed in this case. Batt JA went on to say that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. That is because punishment may in fact lead to further offending. Rehabilitation benefits the community as well as the offender.
[23][1998] 4 VR 235.

In Director of Public Prosecutions v Heblos,[24] Eames AJA recognised the importance of this principle, though pointing out as Batt JA had earlier done in Mills, that cases might arise in which the usual principle, and the general rule, would have to be given lesser weight.
[24](2000) 117 A Crim R 49.

Standing back from the individual sentences, and looking at the total effective sentence of 12 years, we are of the view that this application should be granted. The particular error, if it be necessary to identify one, lies in the trial judge’s orders for cumulation in respect of multiple counts, a number of which were committed at the same time. Some measure of cumulation was called for. However, excessive cumulation has led to a sentence that was, in all the circumstances, greater than was warranted.

We would not interfere with any of the individual sentences imposed. Nor would we interfere with any of the following orders as to concurrency. The sentence of four years imposed on count 9 will be the base sentence. Twelve months of the four-year sentence imposed on count 10 will be cumulated on that base sentence. So too will be three months of the sentence imposed on count 11, 12 months of the sentence imposed on count 12, three months of the sentence imposed on count 14, six months of the sentence imposed on count 15, three months of the sentence imposed on count 16, three months of the sentence imposed on count 18, and six months of the sentence imposed on count 19.

Where we think the principle of totality comes into play is at the level of cumulation fixed for the final four counts of rape. Each of those offences was committed as part of the ‘same transaction’. Although a measure of cumulation was warranted, we think that adding one year for each on to the eight years that had already been accumulated was excessive. With regard to the sentences of four years’ imprisonment imposed on each of counts 21, 23, 24 and 25 we consider that six months, rather than 12 months, on each of those sentences should be cumulative on the base count.

That leads to a total effective sentence of 10 years. The sentencing judge fixed a non-parole period of nine years in relation to a 12-year sentence. Her Honour did not discount the applicant’s prospects of rehabilitation. Nor do we. We would fix a non-parole period of seven years.

With regard to the second ground in support of the application for leave to appeal against sentence, the rape offences in respect of which the applicant was convicted were Class 3 offences after his conviction on the rape counts 9 and 10. By virtue of s 11 of the Sex Offenders Registration Act, the sentencing judge had a discretion as to whether he should be required to comply with the reporting obligations set out under that Act. Her Honour was satisfied, to the requisite degree, that the applicant posed a risk to the sexual safety of one or more persons or the community. She noted that the offending was particularly violent and serious and observed that the applicant had shown no remorse for his actions and little insight into the offence of rape.

In our view, it was plainly open to her Honour to conclude as she did that the applicant posed a risk to the sexual safety of others. The fact that the victim happened to be his girlfriend, and not a stranger, was of no particular consequence. No error in the sentencing discretion regarding this matter has been demonstrated.

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12 November 2008